Will the New Constitution Really Change Politics and Society in Kenya?

by Sep 1, 2010All Articles

website kenya flagBy Willy Mutunga

The ultimate control of the state must be by society, but if the state subordinates society, that control becomes impossible.” In a nutshell, we have an answer to the question posed by this article. As Kenyans who voted overwhelmingly for a new constitution what should we do to ensure that our will is done?

My former professor and mentor, Professor Yash Ghai writes that “in general, as we know, a constitution is not a self-operating or self-executing instrument….The real task of establishing constitutionalism lies in other spheres: politics as construction of values and policies, the judiciary entrusted with the task of authoritative interpretation of the constitution, the rise of professionalism and civic associations to suffuse the public space with economic and social values and practices, enlightened leadership- and public participation and vigilance of the people. The ultimate control of the state must be by society, but if the state subordinates society, that control becomes impossible.” In a nutshell, we have an answer to the question posed by this article. As Kenyans who voted overwhelmingly for a new constitution what should we do to ensure that our will is done?

As a teenager, the independence constitution gave me great pleasure. I proudly wore the medal the colonial government gave us as part of the independence celebrations. In my village in Kitui independence meant we could now walk to the area in Kitui town where whites lived, something we could not do before because of colonial apartheid. Our political leaders gave us hope of change in the country however it was change that oppressed us.

As I grew up I realized that constitutions that are left to the politicians and bureaucrats to implement end up serving their personal interests and not those of the people. Kenyans had become passive to their quest for material needs and were continuously divided on the basis of ethnicity, race, religion, region, clan, gender and generation. Constitution-making for me became a matter of changing the mind-sets of Kenyan people, focusing on their material needs and building a nation that could only prosper if we had leaders committed to these values and ideals. Fortunately, there were many other Kenyans who shared the same commitment. The journey towards progressive change is always a challenge as most people prefer to sit in the ‘status quo’.

The new constitution gives me hope saddled with the skepticism of those decades we tried to convince Kenyans that until they became the guardians of their constitution and rights, held politicians and bureaucrats accountable, understood their entitlement to living a dignified life, the status quo that fundamentally made them poor will continue to enslave them. The forces of anti-reform that we have faced, both internal and external, have not gone away. They remain powerful, however over years the power of the people has made them make concessions that have been consolidated and subsequently used as a basis for further democratic demands.

We have a new constitution and Kenyans have started shaking the shackles that have held them in bondage, be they political, bureaucratic or religious leaderships. Let us not think that having a new constitution means it will be implemented. It is our individual and collective responsibility to ensure that it is.

We can draw lessons from two countries in Asia and South Africa to understand what needs to be done to implement our new supreme law. In 1997 Thailand adopted a constitution that was not different from our new one. The president, Thaksain Shinwatia, subverted it through extreme corruption, by ignoring the provisions on the appointment of an independent judiciary and disregarded various procedures that would have strengthened institutions created under the constitution. He mobilized his support in the rural areas through patronage and divisive politics. As a result the people were not vigilant and poor political leadership sabotaged the implementation of what was a good constitution. For his troubles Shinwatia was overthrown by the military.

Sri Lanka provides yet another example. The country adopted a constitution based on the French system under which the president and the prime minister share power. On paper this constitution was not bad. The president, Mahindra Rajapakse, subverted the constitution, resulting in institutions that were weak. He violated procedures on appointments and trampled upon the rights of minorities. He made Buddhism the dominant religion and mobilized his support among his people, the Sinhalese. Ethnicized societies do not care for human rights of other communities. The result has been a murderous civil war that continues to claim lives of both Sinhalese and Tamils. The good constitution still remains only on paper.

The South African constitution was as robust as ours. South Africa had an energetic implementation strategy resulting in a relative success story. Some great appointments were made to spearhead implementation in the areas of land, housing and water. They picked top notch lawyers for the constitutional court through a transparent system. The judges were picked from outside the existing judicial personnel and they turned that court into a respected forum which developed high level jurisprudence that dealt with developmental issues in South Africa. Mandela’s leadership enhanced the integrity of the institutions of the constitution. It was in the areas of the economy where South Africa was enslaved by neo-liberalism bringing to bear great limitations to the implementation of the new constitution. Mbeki’s rule did not mitigate this situation while Zuma’s presidency has seen signs of the weakening of institutions, allegations of corruption, ethnic cards being played in politics and perhaps the nurturing of an imperial presidency. As ANC stays dominant and supported by the majority of South Africans their vigilance may take time to reach the levels they reached during the struggle against apartheid system.

These examples highlight one critical aspect in the implementation of any constitution: leadership that is committed to and has the political will to stay loyal to the provisions of the new constitution. Looking at what is going on before we adopt our new constitution the issue of leadership in Kenya causes major concern. It seems the media has conspired with the potential presidential candidates (PPCs) to bamboozle Kenyans into accepting them as the only choices we have. Nobody seems to be asking what the reform credentials of all these candidates are. Are they not to blame for the decadent status quo we find ourselves in? Who among them can be trusted to implement the new constitution that radically affects the vested interests they have protected over decades? We see bureaucrats and ministers rushing the process, submitting names to the NSIS emphasizing that for them it is business as usual. We see the recycling of the names of the usual suspects for senior appointments. What may I ask, is the criteria for the selection of ‘real’ leaders? Kenyans cannot just watch the forces of the status quo and anti-reform picking people they trust to subvert the spirit and word of the new constitution. We must stand up and refute these old ways as they are no longer part of our new free lives.

Five critical appointments to be made under the new constitution will be lawyers. The offices of the Chief Justice, the Attorney-General, the Deputy Public Prosecutor and two members picked by the Law Society of Kenya to sit on the Judicial Service Commission will soon be filled in by lawyers. We urge the Law Society of Kenya to create detailed criteria for nomination, call a Special General Meeting to ratify the criteria and urge lawyers who meet the criteria to submit their names to the Society. Members of the Society should rank these nominees and hand them over the Principals for appointment. The Society must involve the Kenyan public by subjecting the nominees to public scrutiny. I believe the Society will be proactive and make sure that we pick lawyers who will be utterly and unquestionably loyal to the new constitution. The selection will define whether we are moving forward or not.

The Law Society must pay special attention to the precedent of appointments to the Supreme Court. The South African experiment should be a good example. I believe the Annan Formula of quotas for foreigners has run its course and it would be a great shame if we cannot get Kenyans, including those in the diaspora, to sit on the Supreme Court.

The example of Sri Lanka has parallels in Kenya. As long as Kenyans organize their politics on the basis of ethnicity our nation-building project will abort. We see our leaders still talking of ethnic alliances while ethnic organizations still play major political roles. Such backward and decadent politics will not implement our new constitution. I believe the time has come for Kenyans who want to lead this nation in a different direction to stand up to be counted. I know that such individuals exist and they have rejected divisive politics. These alternative leaders are running successful corporate bodies, civil society organizations, social movements and international organizations. We also have patriotic individuals who are not seeking positions of power who can convene these leaders. I believe the time for this to happen is now. This leadership can reinforce those individuals currently in active politics who love this country and who have resisted divisive politics.

The alertness and vigilance of Kenyans requires massive civic education on the gains to be made within new constitution. The people will get to know what they have to protect and which leaders they can trust to uphold and protect necessary changes. Chapter 6 of the new constitution in my opinion should be the basis of this civic education. The discussion on constitutional values and leadership with integrity are both critical if fundamental change in Kenya is to happen. The focus on leadership should be at all levels of our society, from the family, community, schools, religious organizations, corporations and at public offices. Understanding, living and being a value based country is the only way forward.

We should also focus on those external forces that can either reinforce progressive change or thwart it. There are dominant foreign interests in this country that prop the decadent status quo. We need a leadership that can undertake serious dialogue with these forces. Advancing arguments about sovereignty when we violate the same principle by being dependent on foreign interests is part of the old. The world is full of leadership that has forced foreign interests to listen to interests of their respective countries. If we are to successfully implement Chapter 4 on the Bill of Rights to promote and protect economic, social and cultural rights we will need leaders who can undertake the task of focusing on dominant foreign interests in this country.

As we celebrate the birth of the Second Republic on August 27, 2010 my prayer will be that alternative leadership emerges that will spearhead changes the new constitution embraces. We must make this happen for our future generations.

Dr. Willy Mutunga is the Regional Representative of the Ford Foundation. Nothing in this article should be taken as the policy or position of the Foundation.

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